51 Ga. App. 507 | Ga. Ct. App. | 1935
Asa Dean Rhodes was made treasurer of the Board of Trustees of Stone Mountain School District No. 20 of DeKalb County, Georgia. The United States Fidelity & Guaranty Com- ■ pany executed the official bond of such treasurer as surety, which bond was in the penal sum of $3500, and conditioned “that if the said Asa Dean Rhodes shall well and faithfully perform all the duties of his said office, then this obligation to be void, otherwise to remain in full force and effect. . . It is understood and agreed, and this bond is given and accepted on the condition that the surety shall in no way be held liable for any loss, costs, damages or expenses of any kind caused by the failure of any Bank,
Said bond of the treasurer was delivered to and accepted by the board of trustees of said school district “acting for and in behalf of the County Board of Education of DeKalb County, Georgia,” and the said treasurer entered upon the performance of his duties as such. There' were paid over to him as such treasurer public school funds, which it was his duty to receive and care for, that
The fidelity company brought suit against Dr. W. T. McCurdy upon the above and foregoing indemnity agreement executed by him for the amount of the claim paid by it and the $150 attorney’s fees expended in making the settlement. From the petition the above facts appear, and it was also alleged that the treasurer of said school district was insolvent, that said treasurer paid the premiums on said bond and acted on the same as his official bond and received thereunder the funds entrusted to him, and that all parties interested in the bond had treated the same as a valid, legal and binding bond. The defendant demurred to the petition upon the ground that no cause of action was set out; that it appeared from the petition that any payment of a claim made by the fidelity company was a voluntary one for which it was not liable, that it was not shown that there was any legal liability upon the part of the fidelity company to pay said claim, and that unless it appears from the petition that the plaintiff was legally liable for the payment of said claim under the bond it can not proceed against the defendant to recover the amount so paid. The court sustained the demurrer and dismissed the petition, holding that the bond was not a statutory one. To this judgment the plaintiff excepted.
“It shall be the dirty of the treasurer or the secretary and treasurer of any board of trustees of a public school receiving money raised by local taxation for public schools, to make a good and suf
It will be seen from section 32-1120 that the bond of the treasurer of a school district given for “the faithful performance of his duties” shall be made “payable to the county board of education.” It is contended by counsel for the defendant that because said bond was not made payable to the county board of education, but was made payable to the “Board of Trustees, Stone Mountain School District No. 20,” that the same failed to meet the requirements of the above section of the code, and was not a statutory bond, but was a common law undertaking or voluntary bond. On account of the provisions of section 89-419 of the Code, and of the rulings in Mayor &c. of Brunswick v. Harvey, 114 Ga. 733 (40 S. E. 754), Anderson v. Brumby, 115 Ga. 644 (42 S. E. 77), Anderson v. Blair, 118 Ga. 211 (45 S. E. 28), Citizens Bank of Colquitt v. American Surety Co., 174 Ga. 852 (164 S. E. 817), American Surety Co. v. Googe, 45 Ga. App. 108 (163 S. E. 293), Carter v. Veal, 42 Ga. App. 88 (155 S. E. 64), and American Surety Co. v. NeSmith, 49 Ga. App. 40 (174 S. E. 262), the above question was certified by this court to the Supreme Court. Under the answer of the Supreme Court to such question certified to it, the bond involved in this case is a common-law bond, and not a statutory bond. U. S. F. & G. Co. v. McCurdy, 181 Ga. 683 (180 S. E. 633).
The bond in this case provided that the same was given and accepted on condition that the surety company should not be liable
The defendant contends that the.bond of the treasurer in this case was not signed by him and that this rendered such bond unenforceable against the surety thereon; and that for this reason the surety was not legally-obligated to pay the claim of the county board of education in this case. On the question of the liability of sureties on official bonds not signéd by the principals thereof the authorities are in conflict. See Note 90 Am. St. E. 192; Note 12 L. R. A. (N. S.) 1108; Note Ann. Cas. 1912A, 1015. The better view is that where an official bond is made, delivered, accepted and acted upon as an official bond, the same being a joint and several obligation under its terms and provisions, it is binding on both principal and surety though not signed by the principal. See Adams v. Williams, 97 Miss. 113 (52 So. 865, 30 L. R. A. (N. S.) 855); Code of 1933, § 89-419. Nothing to the contrary is ruled in Mayo v. Renfroe, 66 Ga. 408 (4). In that case the bond was not signed by the officer and had never been accepted by the Governor of this State'as the bond of such officer. "It is a contract under seal never made by the obligor and never delivered to or received by the obligee.”
Applying the rulings above stated, the trial court did not err in sustaining the general demurrer.
Judgment affirmed.